Exhibit 10(z)(7)
FIRST AMENDMENT
TO REVOLVING/TERM LOAN CREDIT AGREEMENT
This First Amendment to Revolving/Term Loan Credit Agreement (this
"Amendment") is entered into as of September 3, 2004, by and between ▇▇▇▇▇▇▇▇,
Inc., a Delaware corporation ("Borrower"), each lender from time to time party
to the Credit Agreement (as defined below) (collectively, the "Lenders" and
individually, a "Lender"), and UNION BANK OF CALIFORNIA, N.A., as Agent and as
U.K. Security Trustee (in such capacity, "Agent").
RECITALS
Borrower, Agent and the Lenders are parties to that certain Revolving/Term
Loan Credit Agreement dated as of July 6, 2004, as amended from time to time
(the "Credit Agreement"). The parties desire to amend the Credit Agreement in
accordance with the terms of this Amendment. Unless otherwise defined, all
initially capitalized terms in this Amendment shall be as defined in the Credit
Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Lenders hereby waive Borrower's compliance with Section 6. 12(a) of the
Credit Agreement as in effect prior to the date of this Amendment, solely for
the period ended July 31, 2004.
2. For the period ending October 31, 2004 only, Section 6.12(a) of the
Credit Agreement hereby is amended and restated to read as follows:
"(a) Tangible Net Worth. Maintain on a consolidated basis Tangible
Net Worth equal to at least the sum of the following:
(i) Seventy Four Million Dollars ($74,000,000); plus
(ii) The net proceeds from any equity securities issued after
the date of this Agreement. "
3. For the period ending January 31, 2005 and thereafter, Section 6. 12(a)
of the Credit Agreement hereby is amended and restated to read as follows:
"(a) Tangible Net Worth. Maintain on a consolidated basis Tangible
Net Worth equal to at least the sum of the following:
(i) Seventy Four Million Dollars ($74,000,000); plus
(ii) the sum of 90% of net income after income taxes (without
subtracting losses) earned in each quarterly accounting period commencing
on January 31, 2005; plus
(iii) the net proceeds from any equity securities issued after
the date of this Agreement."
4. No course of dealing on the part of Lenders, Agent or its officers, nor
any failure or delay in the exercise of any right by Agent or any Lender, shall
operate as a waiver thereof, and any single or partial exercise of any such
right shall not preclude any later exercise of any such right. Agent's or
Lenders' failure at any time to require strict performance by Borrower of any
provision of any Loan Document shall not affect any right of Lenders or Agent
thereafter to demand strict compliance and performance. Any suspension or waiver
of a right must be in writing signed by an officer of Agent, in accordance with
the terms of the Credit Agreement.
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5. The Credit Agreement, as amended hereby, shall be and remain in full
force and effect in accordance with its respective terms and hereby is ratified
and confirmed in all respects. Except as expressly set forth herein, the
execution, delivery, and performance of this Amendment shall not operate as a
waiver of, or as an amendment of, any right, power, or remedy of Agent or
Lenders under the Credit Agreement, as in effect prior to the date hereof.
6. Borrower represents and warrants that the Representations and
Warranties contained in the Credit Agreement are true and correct as of the date
of this Amendment, and that, except as expressly waived hereby, no Event of
Default has occurred and is continuing.
7. As a condition to the effectiveness of this Amendment, Agent shall have
received, in form and substance satisfactory to Agent, the following:
(a) this Amendment, duly executed by Borrower;
(b) all reasonable Attorney Costs incurred through the date of
this Amendment, which may be debited from any of Borrower's accounts; and
(c) such other documents, and completion of such other
matters, as Agent may reasonably deem necessary or appropriate.
8. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one instrument.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
first date above written.
▇▇▇▇▇▇▇▇, INC.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Its Executive Vice President,
Chief Operating Officer, Chief Financial
Officer, Chief Accounting Officer and
Treasurer
UNION BANK OF CALIFORNIA, N.A., as Agent
By: /s/▇.▇. ▇▇▇▇
Name: ▇.▇. ▇▇▇▇
Title: Vice President
UNION BANK OF CALIFORNIA, N.A., as U.K.
Security Trustee
By: /s/▇.▇. ▇▇▇▇
Name: ▇.▇. ▇▇▇▇
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.., as a
Lender
By: /s/▇.▇. ▇▇▇▇
Name: ▇.▇. ▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT
TO REVOLVING/TERM LOAN CREDIT AGREEMENT]
[SIGNATURES CONTINUED NEXT PAGE]
BANK OF THE WEST
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
COLUMBUS BANK AND TRUST
By: /s/M. ▇▇▇▇ ▇▇▇▇▇▇▇
Name: M. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT
TO REVOLVING/TERM LOAN CREDIT AGREEMENT]
